Whittle and Cooper cover C:Layout 1 01/07/2009 15:43 Page 1 RISJ REUTERS REUTERS CHALLENGES INSTITUTE for the STUDY of INSTITUTE for the JOURNALISM CHALLENGES STUDY of JOURNALISM | Privacy, probity and public interest probity Privacy, “'Privacy, Probity and Public Interest' shows how privacy has come Privacy, probity and to be both better protected by the courts and more widely ignored: big questions, riveting examples and sharp analysis.” Baroness Onora O'Neill, President of the British Academy and public interest Professor of Philosophy, Cambridge University “is report is from the frontline. Although it contains an admirable survey of the law and the stance of the regulators, it does much more. It gives interested parties a voice. e authors provide their own thoughtful commentary; they do not shirk the difficult questions. Stephen Whittle and Glenda Cooper Everyone should be interested in this debate, and I wholeheartedly commend this report to anyone who is.” Andrew Caldecott, QC, Specialist in Media Law “An erudite and compelling exposition of one of the most important ethical dilemmas facing British Journalism in the internet era. e authors identify a route towards a new journalism that can respect privacy without compromising its democratic obligation to hold power to account.” Tim Luckhurst Professor of Journalism, University of Kent Stephen Whittle is a journalist and was the BBC's Controller of Editorial Policy (2001–2006). As Controller, he was involved in some of the most high profile BBC investigations such as The Secret Policeman, Licence To Kill, and Panoramas on the Olympics and care of the elderly. He was previously Director of the Broad- casting Standards Commission (1996–2001), which considered complaints on privacy. Glenda Cooper is a journalist and former visiting fellow at the Reuters Institute for the Study of Journalism. She was the 2006–7 Guardian Research Fellow at Nuffield College, Oxford, where she remains an associate member. She has worked for the Independent, and Cooper Whittle Daily Mail, Washington Post, Sunday Times and the BBC and is currently a consulting editor at the Daily Telegraph. Cover image © Reuters image Cover Whittle and Cooper cover C:Layout 1 01/07/2009 15:43 Page 2 RISJ CHALLENGES SELECTED RISJ PUBLICATIONS CHALLENGES present findings, analysis and recommendations from Oxford’s Reuters Tim Gardam and David A. L. Levy (eds) Institute for the Study of Journalism. e Institute is dedicated to the rigorous, international e Price of Plurality: Choice, Diversity and Broadcasting comparative study of journalism, in all its forms and on all continents. CHALLENGES Institutions in the Digital Age muster evidence and research to take forward an important argument, beyond the mere published in association with Ofcom expression of opinions. Each text is carefully reviewed by an editorial committee, drawing where necessary on the advice of leading experts in the relevant fields. CHALLENGES John Lloyd and Julia Hobsbawm remain, however, the work of authors writing in their individual capacities, not a collective e Power of the Commentariat expression of views from the Institute. published in association with Editorial Intelligence Ltd EDITORIAL COMMITTEE Colin Bundy Tim Gardam CHALLENGES Timothy Garton Ash David Levy James Painter Geert Linnebank Counter-Hegemonic News: A case study of Al-Jazeera English and Telesur John Lloyd Henrik Örnebring Floriana Fossato and John Lloyd with Alexander Verkhovsky e Web that Failed: How opposition politics and independent e editorial advisors on this CHALLENGE were John Lloyd and Tim Gardam.. initiatives are failing on the internet in Russia Published by the Reuters Institute for the Study of Journalism, Department of Politics and Andrew Currah International Relations, University of Oxford, 13 Norham Gardens, Oxford, OX2 6PS What’s Happening to Our News: an investigation into the likely impact Tel: 01865 611090 Fax: 01865 611094 of the digital revolution on the economics of news publishing in the UK http://reutersinstitute.politics.ox.ac.uk Nik Gowing Typeset by the Medical Informatics Unit, NDCLS, University of Oxford. Tel: 01865 222746 ‘Skyful of Lies’ and Black Swans: Printed by Oxuniprint, Oxford. Tel: 01865 844916 e new tyranny of shiing information power in crises Text © Stephen Whittle and Glenda Cooper 2009 Stephen Coleman, Scott Anthony, David E Morrison All additional material © Reuters Institute for the Study of Journalism of the University of Public Trust in the News: a constructivist study of the social life of the news Oxford 2008 e moral rights of the authors have been asserted. All rights reserved. No part of this publication may be reproduced or disseminated or Forthcoming CHALLENGES transmitted in any form or by any means , electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system, or otherwise used in any manner whatsoever John Kelly on without prior written permission, except for permitted fair dealing under the Copyright, Red Kayaks and Hidden Gold: Designs and Patents Act 1988. the rise, challenges and value of citizen journalism © RISJ July 2009 -- ISBN 978-0-9558889-6-0 Glenda Cooper on Disaster Coverage Whittle and Cooper:Layout 2 26/06/2009 09:43 Page i RISJ CHALLENGES Privacy, probity and public interest Glenda Cooper and Stephen Whittle REUTERS INSTITUTE for the STUDY of JOURNALISM Whittle and Cooper:Layout 2 26/06/2009 09:43 Page ii Whittle and Cooper:Layout 2 26/06/2009 09:43 Page iii Contents Executive Summary 1 Introduction 5 1. Privacy in context 9 2. New technology, new challenges to privacy 33 3. Privacy and the longer arm of the law 45 4. What is the public interest? 65 5. Is journalism under threat because of privacy? 81 Conclusions 93 Acknowledgements 99 iii Whittle and Cooper:Layout 2 26/06/2009 09:43 Page iv Whittle and Cooper:Layout 2 26/06/2009 09:43 Page 1 Executive summary In Britain there is currently a battle engaged around the point at which freedom of information and expression meet the right to the protection of private life. Yet neither ‘private life’ nor ‘public interest’ are immutable. There have been significant changes in how both have been perceived and defined over time. This report aims to address some of the questions over the changing nature of privacy, which private matters can be revealed by journalists in the public interest and whether the increasing use of the Human Rights Act to safeguard an individual’s privacy is creating a ‘chilling’ effect on journalism. We have interviewed lawyers, academics, journalists, bloggers and those who have found their privacy invaded by the media—as well as those who have invaded it themselves. New technology has been one of the main drivers of changes in perception of privacy. The internet allows private citizens to distribute photographs and information about themselves in a way unthought of only a few years ago—and which has affected the mainstream media. This has helped foster a culture of revelation that reached its apogee this year when the Big Brother reality star Jade Goody continued to give interviews, be photographed and talk frankly about her cancer until she died. While many are more freely revealing intimate matters, there are those who find themselves the target of mainstream media exposés. While in the past celebrities and public figures have turned to the libel laws, now increasingly they are turning to the courts to protect their privacy—as seen in the Max Mosley case against the News of the World in 2008. We need a free media that can expose wrongdoing and challenge those in power but, if the media is going to infringe privacy, it needs to take care that it is standing on the firm ground of public interest and that the means it employs to investigate are not fatally compromised either by the wrong 1 Whittle and Cooper:Layout 2 26/06/2009 09:43 Page 2 RISJ CHALLENGES | Privacy, probity and public interest choice of target or the manner in which the investigation is conducted. Our findings in brief are as follows: • Most people still regard the following as essentially private: sex and sexuality; health; family life; personal correspondence and finance (except where public monies are concerned). We expect to have the highest protection of privacy around what happens in the home, in hospitals or places where people are at their most vulnerable. Children and ordinary citizens are felt to have higher rights to privacy than celebrities and public figures. • Privacy is becoming commoditised. Celebrities are increasingly selling off selected parts of their private life through a complaisant media— while protecting other parts through the courts. Yet private citizens are increasingly putting parts of their lives on public display via the internet to seek fame or to connect with others. • New media, especially the internet and mobile phone cameras, have rapidly altered how we can invade our own privacy—or that of others. While many regard what happens on blogs or social networking sites such as Facebook as semi-private, journalists see it as information in the public domain—and therefore fair game. The net has opened a parallel universe in which everyone is still learning to cope. • Privacy actions have become the new libel, with many celebrities and public figures now choosing to seek redress through the Human Rights Act rather than taking their chances with libel. As such the right to privacy (Article 8) is being pitched against freedom of expression (Article 10). A succession of cases (such as McKennitt v Ash, Lord Browne) have seen judges look increasingly closely at how freedom of expression and personal privacy dovetail. • The cases involving Naomi Campbell, J. K. Rowling, Princess Caroline of Monaco and Max Mosley show that the courts seem to be moving towards a much stricter interpretation of privacy when photographs are involved.